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Court of Appeal Declines to Order New Trial for Plaintiff

In the recently published case of Smagh v. Bumbrah, 2011 BCCA 281, the Court of Appeal refused to grant a Plaintiff a new trial on the grounds that the Defendant’s lawyer had made improper remarks at trial and adduced inadmissible evidence that may have influenced the jury.

In the trial of the matter, the jury awarded the Plaintiff a mere $2,000 in non-pecuniary damages, $200 for special damages and nothing for past loss of income, loss of future earning capacity or cost of future care. At trial, counsel for the defendant put excerpts from clinical records of the doctor who treated the plaintiff prior to the accident which contained diagnoses of “chronic neck pain” and “myofascial syndrome”.

The Plaintiff’s lawyer objected to those diagnoses being put to the jury and sought an order that the jury be discharged. The trial judge responded by cautioning the jury that they were to place “absolutely no weight” on those words. On appeal the Plaintiff’s lawyer argued that the caution was not a sufficient remedy and that it only served to remind the jury of the damaging (and inadmissible) evidence. The Court of Appeal held that the trial judge did not err in handling the situation as he did and declined to interfere with the discretion exercised on that point.

Harmless Remark in Injury Case?

The Plaintiff’s lawyer also raised the issue of inappropriate statements made to the jury by the Defendant’s lawyer in closing argument. The statement in question was as follows:

“I’m here — I start off normally like this, I’m on behalf of the defendant Mr. Bumbrah. You know that. I’m here with my colleague and we are defending the case. We are charging the plaintiff’s evidence. That’s our role. That’s our job. We’re doing it on your behalf and on His Lordship’s behalf and on behalf, just as my learned friends on behalf of the plaintiff are trying to present evidence to you. That’s our job. That’s their job.”

While the Court of Appeal did not disagree that those remarks might have conveyed the sense that the defence was aligned with the judge and jury in challenging the Plaintiff’s case, it did not disagree with the trial judge finding that they were “harmless”.

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